The butcher, the baker and the candlestick maker can claim the same pay - even if they don't work in the same premises. So says the Supreme Court in a unanimous judgement issued this week. 

In 2006, hundreds of female class room assistants working for Dumfries and Galloway Council brought claims for equal pay. They sought payment of bonuses which were paid to male manual workers but not to them.

In order for the assistants to claim the same pay as the manual workers:

  1. the Council must have rated their work as of equivalent value under a job evaluation study (or a court must rate their work as having equal value).
  1. the assistants must be employed in the same establishment as the manual workers, or be employed under common terms and conditions.
  1. the Council must fail to provide a fair and reasonable explanation for any pay difference. 

The tribunal parked issues 1. & 3. (on rating and objective justification) and instead focused on issue 2. (same employment). According to the Act:

"men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer at the same establishment or at establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes"

The assistants worked in schools and the manual workers were based in depots. They were not therefore employed in the same establishment. The tribunal then needed to determine whether they were employed under 'common terms'.

Typically there are common terms if both employees are employed at different establishments but under the same collective agreement. However the assistants and the manual workers were employed under different collective agreements. There are also common terms if the manual workers are all employed under the same common terms and would continue to be employed under those common terms if the manual workers were to be employed at a school (as opposed to from a depot). But what if the manual workers would never be employed at a school?

The Employment Appeal Tribunal said that there must be a real possibility that a manual worker would be employed at a school and concluded that there was no such evidence. On appeal, the Court of Session rejected this requirement but then considered what job a manual worker might do if employed at a school and whether this would affect their terms and conditions. The Supreme Court rejected both approaches and held quite simply that the question is whether manual workers would retain common terms and conditions if employed to do their present jobs at a school. "The object is to simply weed out those cases in which geography plays a significant part" in determining terms and conditions.

In other words, the butcher, the baker and the candlestick maker can claim the same pay, even if they don't, and won't ever, work in the same premises.